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Legal Safeguards Against Deregulation

This post was originally published on Legal Planet. Reprinted with permission.

While President Trump finds “tariff” one of the most beautiful words in the English language, I myself prefer “anti-backsliding.” Back in January, Trump told the U.S. Environmental Protection Agency (EPA) to roll back efficiency standards on everything from light bulbs to shower heads. Some news outlets viewed this as an accomplished task, with headlines like “Trump Rolls Back Energy Standard.” But, as it turned out, not only was it not a done deal, it was also legally impossible. The reason: an anti-backsliding provision.

Trump has many powers that are denied to us mere mortals, and one is his extravagant use of capital letters. Here’s what he said about efficiency standards:

I am hereby instructing Secretary Lee Zeldin to immediately go back to my Environmental Orders, which were terminated by Crooked Joe Biden, on Water Standards and Flow pertaining to SINKS, SHOWERS, TOILETS, WASHING MACHINES, DISHWASHERS, etc., and to likewise go back to the common sense standards on LIGHTBULBS, that were put in place by the Trump Administration, but terminated by Crooked Joe.

Congress’s prose style, in contrast, makes up in legally binding effect what it lacks in force, verve, and creative use of capital letters. The statute governing efficiency standards provides that:

The Secretary [of Energy] may not prescribe any amended standard which increases the maximum allowable energy use, or, in the case of showerheads, faucets, water closets, or urinals, water use, or decreases the minimum required energy efficiency, of a covered product.

In short, Trump can’t repeal the standards he’s complaining about. The administration tried a workaround to weaken some standards last time, but that’s not likely to work for the things Trump is demanding. And by the way: Trump was giving his marching orders to the head of the wrong agency: EPA doesn’t set these standards.

Other important environmental laws also have anti-backsliding provisions. Under section 172 of the Clean Air Act, relaxing a national air quality standard provides limited benefits for industry. Section 172 provides that new requirements in areas that have not yet met the older, tougher standard must be subject to “controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.”

The Clean Water Act contains two anti-backsliding provisions. The major one is in section 401. It generally prohibits making a new permit for a source weaker than the old one, although there are exceptions. Even when the exceptions apply, though, the permit still must comply with the tougher industry regulations that were in effect when the previous permit was issued. In other words, loosening general industry standards generally does not allow existing permits to be weakened.

Grandfather clauses protect existing activities from being subject to new regulatory requirements. These provisions of the Clean Air Act and Clean Water Act are the opposite: they mean that existing activities won’t benefit if existing regulations are weakened. That means that weakening existing regulations loses a lot of its value to industry.

If it could, no doubt the current administration would be happy to have the same polluted air and water — and energy-wasting appliances — that we had 50 years ago. Thanks to the anti-backsliding aspects of environmental law, however, they can’t really achieve that. The best they can generally do is to get rid of recent regulations that haven’t gone into effect yet. Sorry, Mr. President.

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